The Treaty process on business and human rights enters a new phase after substantive discussions at the UN

The third session of the United Nations Intergovernmental Working Group on transnational corporations and other business enterprises with respect to human rights (IGWG), which took place from October 23rd to 27th in Geneva, prompted substantive discussions among member states, based on the Elements for the draft legally binding instrument presented by the Chair of the IGWG one month prior to the session.

A growing momentum around the treaty process: States and civil society’s intensified engagement

This session confirmed the growing momentum for the adoption of binding international law to regulate corporate activities vis-à-vis human rights. According to the Chair-Rapporteur of the Working Group, more than a hundred States engaged in this session, when sixty States had taken part in the first session two years ago. Undeniably, this sharp increase in participation indicates that the international community is taking stock of the urgency of the issue and the progress made so far in the treaty process. Panels covered all the sections of the draft elements and were composed by representatives from academia, CSOs, European and national parliaments, business associations and practitioners. They contributed in clarifying some of the concepts contained in the draft elements and in answering some questions of the States delegations on specific topics.

Civil society has put a lot of energy in fostering this momentum and coordinated through several coalitions. Amongst those, the Treaty Alliance has been leading advocacy efforts since 2013, gathering more than nine hundred organizations and one thousand individuals, showing again during this session that civil society is a crucial actor in the negotiations. Acknowledging the value of the draft elements published by the Chair (Ecuador) and providing inputs on how to reinforce them, FIDH participated actively in the discussions on the concrete shape and content of the future binding instrument, in an attempt to bring grass-root organizations and victims’ voices in this high-end intergovernmental process. These contributions, that are summarized in FIDH preliminary observations to the draft elements and in the oral statements read during the session, include the following points:

The legally binding instrument should ensure consistency with the General Comments of several UN treaty bodies, and reaffirm that all companies must respect human rights. While the instrument should include a special focus on the gaps linked to transnational activities, this will help leveling the playing field of businesses’ obligations and prevent regulatory loopholes that complex corporate structures, including transnational ones, could exploit.

The treaty should reinforce the protection to human rights defenders: as key actors in the pursuit of justice against corporate abuse, they face increasing threats from both public and private actors, in a shrinking civil society space.

It is crucial that the future binding instrument includes provisions on conflict affected areas, this would help answering specific and dire human rights abuses in many different regions where well-known links between corporate abuse and conflicts occur (e.g. UNGP No. 7). Furthermore the future instrument should build on the existing international framework regarding extraterritorial obligations of states with respect to business activities. It should clarify the respective duties of home and host States, address the current gaps regarding jurisdiction, and thus improve corporate accountability and access to justice altogether.

The binding instrument should present provisions to address the wide range of gender issues arising in business and human rights cases, such as gender-specific impacts, restricted information and participation, or barriers in access to justice. Moreover,

provisions regarding access to justice should consider the specific needs and challenges faced by women and indigenous peoples. To guarantee equal access to judicial and non-judicial mechanisms the treaty should address geographical and linguistic barriers, ensure medical and psychological care and account for collective dimensions of justice.

Further, FIDH organized two side events with its partners on major issues, that can be seen in replay on-line:

Thorough exchanges on the scope:

During the session several States positions and divergences started to emerge in relation with the different Sections of the document presented by Ecuador. In particular, the issue of the scope of the future instrument as well as its relationship with already existing international instruments, including with the UNGPs, was pointed out repeatedly by some delegations. All the positions expressed during the week by different delegations and actors are reflected in the provisional report of the session adopted at the end of the session and available here the report contains also the recommendations and conclusions adopted by the IGWG at the end of the session.

In particular, with regard to the scope of the future instrument that will have to regulate “transnational companies and other business enterprises” (Res. 26/9), in an attempt to achieve consensus Ecuador introduced the notion of “activities with transnational character” in the draft elements. While this notion is still to be refined, FIDH believes that it holds potential for reaching a compromise among the diverse positions of States. We thus strongly encourage all relevant players to allow discussions on the scope as an element of content in the future stages of the process.

Moreover, during the debates, delegations underlined the need for a future instrument to build on the already existing international framework. The UNGPs, adopted by the Human Rights Council in 2011,were evoked during the session by delegations, panelists and civil society, who pointed out repeatedly the remaining gaps. The draft elements presented by Ecuador recall explicitly the UNGPs in the Preamble while using some of their language all along the text, notably the concept of human rights due diligence.

Conclusions

The third session of the IGWG achieved the goal to start substantive discussions about concrete elements of the future binding instrument. While many delegations’ interventions focused on asking questions rather than putting forward concrete proposals, the debate in Geneva was open, enriching and certainly represented an important step towards the elaboration of a draft binding instrument, which will constitute the fulfillment of the IGWG mandate, as contained in Resolution 26/9. Many States, including those that were reluctant to this process two years ago, have expressed their agreement on the continuation of the negotiations, acknowledging the urgent need to answer to the request of justice for human rights abuses of economic activities coming from all over the world and expressed by civil society organizations present in Geneva. This constitutes a good basis for forging consensus regarding the follow up of the process for the elaboration of a legally binding instrument for business and human rights.

As the third session of the IGWG has come to an end, FIDH believes that it is time for the States to engage in the negotiations and to devote the future sessions to the fine tuning of the obligations to be included in the treaty including those with regards to preventive measures, legal liability, access to justice, international cooperation and monitoring mechanisms. Such elements could be based on the debates that took place during this week in order to reinforce and improve the coherence and interrelation between the future instrument and other existing instruments constituting the international framework for the protection of human rights from corporate abuse.

Recommendations:

1. FIDH calls on all States to remain engaged in the process and to support continuation of the IGWG’s work in order to fulfill its mandate “to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises” as referred in Resolution 26/9 of the Human Rights Council and to lead consultations at international and national with stakeholders and civil society, prior to the next session of the IGWG in order to foster their position.

2. FIDH asks all States to provide constructive and substantive comments and inputs to the draft elements presented by Ecuador, on the basis of the discussions held in Geneva and of their own experience in dealing with the regulation of business behavior with regards to human rights.

3. FIDH asks the Chair of the IGWG to continue its delicate role as inclusive and impartial president of the Group by promoting and coordinating timely informal consultations on the draft elements and program of work as well as ensuring the continuation of the process through inclusive and substantive discussions.